Conflictoflaws

Leontine Bruijnen (Maastricht University) has recently published a book titled Recognition of kafala and child marriage in family law and migration law (Wolters Kluwer, 2025) based on her dissertation written under the supervision of Prof. Dr. Thalia Kruger and Prof. Dr. Marta Pertegás.

According to the publisher’s website, “This book explores how the recognition of kafala and child marriage varies between family law and migration law, and how greater alignment can be achieved.” “It analyzes the role of private international law, EU principles, and legal concepts such as the best interests of the child and legal certainty. Through case studies from Belgium and Germany, the study offers an in-depth perspective on the legal challenges and possibilities for better harmonizing these complex issues. It constitutes a valuable resource for legal scholars and policymakers.”

The book’s blurb reads as follows:

When a person moves to another State, the question arises how the receiving State should recognise the legal institutions concerning that person. This is particularly pertinent when the legal institution does not exist (or not in the same form) in the receiving State. Two examples of such institutions in Belgium and Germany are kafala and child marriage.

Whether and how these institutions are recognised is important for family law purposes, such as parenthood and inheritance, as well as for migration law purposes, such as family reunification and the qualification as an unaccompanied minor. Legal uncertainty may arise when a kafala or child marriage is recognised for family law purposes but not for migration law purposes, or vice versa.

Recognition of kafala and child marriage in family law and migration law: private international law bridging the gap? explores how private international law is used, and could be used, to determine the recognition of kafala and child marriage for family law and migration law purposes. It also examines the influence on recognition of EU principles, public policy, the best interests of the child, the right to private and family life, and the principle of legal certainty. The research includes an analysis of the Belgian and German case law on kafala and child marriage.

The book’s central aim is to assess whether, and how, private international law can serve as a bridge between the recognition of kafala and child marriage for family law purposes and migration law purposes, with the aim of achieving greater alignment between the two areas of law.

The book’s table of contents and an excerpt from the book are available on the publisher’s website.

By Eduardo Álvarez-Armas, Assistant Professor of Law at the Universidad Pontificia Comillas (Spain) and Université Catholique de Louvain (Belgium)

Earlier this year, publishing house Tirant Lo Blanch released “Un Derecho Internacional Privado centrado en los derechos de las personas” (Private international law as focused on the rights of individuals), a volume that compiles the papers presented in the “VII Seminario AEPDIRI sobre temas de actualidad de Derecho Internacional Privado”, the 7th workshop on trending topics in private international law organized by the Spanish Association of International Law and International Relations Professors. These workshops on trending topics, initiated in 2015, have become one of the most significant academic activities of the Asociación Española de Profesores de Derecho Internacional y Relaciones Internacionales (AEPDIRI). They provide a yearly forum for collective reflection on the most dynamic and debated questions in each of the association’s academic branches (public international law, private international law and international relations), enhancing the exchange of research and practice ideas among academics, judges, and legal professionals, from Spain and beyond.

As reflected in this book (digitally available for free / open access here), the 2024 edition of the workshop was held on 14 March 2024 at the Law School of the Universidad Pontificia Comillas (ICADE) in Madrid, and was convened by Professors Beatriz Campuzano Díaz (Universidad de Sevilla), Guillermo Palao Moreno (Universidad de Valencia), and Salomé Adroher Biosca (Universidad Pontificia Comillas). The theme chosen for the workshop sought to re-frame and place the spotlight of the field on its ultimate subjects — human beings — by examining how private international law addresses delicate aspects of personal status, family relations, vulnerability, migration, and human rights in transnational contexts. This ambitious thematic framework led to a workshop of remarkable breadth and diversity, gathering scholars from numerous Spanish and foreign universities as well as practitioners who are actively engaged in cross-border litigation and consultancy. Both speakers and the audience engaged in lively discussions around various sub-topics that highlight private international law’s human-centred vocation; amongst the latter, the regulation of personal capacity in cross-border situations; international aspects of parenthood; the rights of vulnerable persons; the impact of digitalisation on personality rights; corporate due-diligence obligations and human-rights accountability in global value chains; civil liability of multinational enterprises for human-rights violations; new challenges in immigration law; migrants’ rights viewed through a private-law lens, etc.

After a presentation by the organizers, the book begins with the key-note speech, delivered by Nicolas Nord, Professor at the Université de Strasbourg and Secretary General of the International Commission on Civil Status, “Un Derecho Internacional privado centrado en los derechos de las personas: un análisis transversal, crítico y prospectivo”: a “cross-cutting, critical and forward-looking analysis” of the book´s theme (the field “as focused on the rights of individuals”) that rightly sets the tone and paves the way for the three conceptual blocks of presentations (round tables) that the conference was structured around.
The first round table, “Rights of vulnerable persons”, focused on the international protection of vulnerable individuals, both minors and dependent adults, and was led by two main presentations. The first one by Laura Martínez-Mora Charlebois, Secretary at the Hague Conference on Private International Law, was entitled “La protección internacional de las personas, en particular los niños, a través de los Convenios de La Haya” (The international protection of persons, particularly children, through the Hague Conventions), and outlined the role of the Hague instruments in safeguarding children’s rights. The second one, by Mónica Herranz Ballesteros (UNED) analysed “La protección de los derechos de los menores y de los adultos en el Derecho Internacional Privado de la Unión Europea” (The protection of the rights of minors and adults in the private international law of the European Union), examining how EU private-law measures complement human-rights protection. Five other papers enriched this session: María González Marimón, “La protección del adulto vulnerable en la UE: un principio en construcción” (The protection of vulnerable adults in the EU: a principle under construction); Briseida Sofía Jiménez-Gómez, “Los derechos de protección de datos en Internet y la decisión de adecuación con EE.UU.” (Data protection rights on the Internet and the “adequacy decision” vis-à-vis the US); Lidia Moreno Blesa, “La confluencia del Derecho Internacional público y privado en la protección de adultos vulnerables” (The convergence of public and private international law in the protection of vulnerable adults); Natividad Goñi Urriza, “Novedades de la propuesta de Reglamento sobre protección de adultos y competencia judicial internacional” (Novelties in the proposed Regulation on the protection of adults, and international jurisdiction); Raúl Lafuente Sánchez, “Foros competentes y normas de conflicto en la protección de adultos” (Jurisdiction and conflict rules on adult protection); and Stefania Pia Perrino, “Post-mortem reproduction, filiation and parenthood”. Jointly considered, these papers illustrated the increasing interaction between private international law and other fields of law (as for instance, data protection, or bioethics) highlighting how the field serves as a vehicle for the effective implementation of individual rights across borders.
The second round table, “Due diligence, corporations, environment and human rights” explored the interplay between corporate conduct, sustainability, and human-rights accountability from a private international law perspective and began with presentations by Francisco Javier Zamora Cabot (Universitat Jaume I) on “Empresas, derechos humanos y acceso: cruzando -de nuevo- el Atlántico” (Business, human rights and access: crossing the Atlantic once again), reflecting on comparative experiences of transatlantic litigation, and Antonia Durán Ayago (Universidad de Salamanca) on “Diligencia debida y Derecho Mercantil materialmente orientado hacia la sostenibilidad: implicaciones para el Derecho Internacional Privado europeo” (Due diligence and sustainability-oriented commercial law: implications for European private international law), assessing the EU’s take on regulatory aspects of due diligence and sustainability as combined with private international law. Further papers included: Laura García Álvarez, on the EU directive on corporate due diligence and its private-international-law implications (“Extraterritorialidad y competencia judicial internacional en la Directiva de la UE sobre diligencia debida de las empresas en materia de sostenibilidad”); Nerea Magallón Elósegui, on the Delegated Regulation (EU) 2023/2772 enhancing non-financial reporting standards (“Un nuevo paso en el camino de la diligencia debida hacia una mayor transparencia de la conducta empresarial: el Reglamento delegado por el que se completa la Directiva 2013/34/UE en lo que respecta a la norma de presentación de información no financiera”); and María Font-Mas, on the Anti-SLAPP Directive and its private international law aspects (“La Directiva (UE) 2024/1069 sobre demandas estratégicas contra la participación pública (Anti-SLAPP): aspectos de Derecho Internacional privado”). Overall, this session underscored the growing convergence between private-law regulation, environmental governance, and human-rights enforcement, stressing private international law’s potential as a tool for corporate accountability and sustainable global commerce.
The third and final round table, “Inmigration through a rights-based perspetive”, examined migration and foreign-national status through the prism of individual rights and vulnerability, and was led through presentations by Isabel Eugenia Lázaro González (ICADE) on “El derecho a la identidad de los extranjeros y la determinación de la edad” (The right to identity of foreigners and age determination), addressing legal and evidentiary issues in identifying minors, and by Carmen Azcárraga Monzonís (Universitat de València) on “Extranjería y violencia contra la mujer” (Immigration laws and violence against women), assessing the evolution and remaining challenges of Article 31 bis of Spain’s Organic Law 4/2000. Further presentations enriched the debate, including: Lucas Andrés Pérez Martín, “Gestión de niños y niñas migrantes no acompañados” (Management of unaccompanied migrant children); Nieves Irene Caballero Pérez, “Los niños invisibles y su reconocimiento jurídico internacional” (Invisible children and their international legal recognition); Dulce Margarida de Jesus Lopes, “Matrimonio de menores en el Derecho privado europeo e internacional” (Marriage of minors in European and international private law); Antonio Quirós Fons, “La nueva tarjeta azul y los derechos del inmigrante altamente cualificado” (The new blue card and the rights of highly skilled immigrants); Vito Bumbaca, “Protective coordination for children seeking asylum”; and Carmen Parra Rodríguez, “Acogida familiar de menores migrantes no acompañados” (Foster care for unaccompanied migrant children). This final round table enshirned the human-rights dimension of migration management, emphasising how private international law contributes to the recognition of personality, to family unity, and to the procedural protection of migrants and minors.

In a nutshell, the book serves as a collective reaffirmation of private international law as a filed of law at the service of persons and their rights, integrating theoretical innovation with practical commitment to justice in an interconnected world. It further condenses, black on white, the workshop’s exceptional thematic richness and participation, demonstrating the vitality of the AEPDIRI network and the relevance of private international law to contemporary human-rights debates.

HCCH Monthly Update: December 2025

Membership

On 4 December 2025, Indonesia applied to become a Member of the HCCH. On the same day, the Secretary General of the HCCH opened the six-month voting period during which all current Members of the HCCH may cast their vote on the proposal. Following this voting period, and provided a majority of votes are cast in favour, Indonesia will be invited to become a Member by depositing an instrument of acceptance of the Statute of the HCCH. More information is available here.

Meetings & Events

On 1 December 2025, the third meeting of the Working Group established to finalise the Good Practices document relevant to the 1965 Service, 1970 Evidence, and 1980 Access to Justice Conventions was held online. More information is available here.

From 2 to 4 December 2025, the Experts’ Group on Carbon Markets met for the third time, continuing its study of the private international law issues arising from carbon markets. More information is available here.

On 10 December 2025, the third Post Adoption Services Workshop was held online, hosted by the Central Authority of Canada under the 1993 Adoption Convention. The event had over 120 participants from over 35 Contracting Parties to the Convention. More information is available here.

On 11 December 2025, the Permanent Bureau (PB) of the HCCH hosted a book launch for the publication of The Hague Convention on Choice of Court Agreements: A Commentary, in celebration of the tenth anniversary of the entry into force of the 2005 Choice of Court Convention. More information is available here.

Other Developments

The PB of the HCCH has launched a public consultation on the Draft Text of a possible new convention on parallel proceedings and related actions, to be held from 18 November 2025 to 26 January 2026. Experts, practitioners and judges from diverse legal traditions with experience in cross-border litigation and private international law more broadly are encouraged to participate in the consultation. More information is available here.

On 23 December, the PB of the HCCH announced the conclusion of the e-Country Profiles project, resulting in the development and modernisation of online Country Profiles for a number of key HCCH Conventions. Contracting Parties to these Conventions can now easily publish legal and practical information about their implementation of these instruments, making the e-Country Profiles a valuable tool for use by public authorities, legal practitioners and other interested parties. More information is available here.

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

Recenty, the 26th volume of the Yearbook of Private International Law has been published (available here). This year’s edition puts a particular emphasis on Choice of Court Agreements, the EU Succession Regulation as well as the impact of the Covid-19 Pandemic on International Family Law:

Part I: Doctrine

Pascal DE VAREILLES SOMMIERES
Paving the Way for an Internationalist Representation of Private International Law Today

Francesca C. VILLATA
The Law Applicable to Third-Party Effects of the Assignment of Claims – The travaux préparatoires for an EU Regulation

Christiane VON BARY
New Private International Law Rules in the Law of Persons in Germany – Gender and Names

Stefano DOMINELLI
Cross-border Service of Documents via Social Media “Notifications” in
Global and EU Private International Law

Part II: Choice of Court Agreements – Old Issues and Recent Developments

Matthias WELLER
Delineating EU Law from Member State Law – The Latest from the CJEU on Choice of Court Agreements (Inkreal, Lastre, Maersk)

Tania DOMEJ
A Swiss Federal Court Decision on Jurisdiction Clauses and Multiple Defendants

Lyssa Maria BRITO
The Law Governing Forum-Selection Clauses in International Commercial Contracts – Interpretation and Enforcement in Light of Choice-of-Law Provisions

Part III: Court Decisions

Johan MEEUSEN
The Interaction between Freedom of Establishment and Corporate Conflict of Laws in the European Union – The CJEU’s Edil Work 2 Judgment

Etienne PATAUT
Selling Citizenship – A Challenge for Europe – A Commentary on the
CJEU’s Decision in Commission v Malta

Part IV: Decisions on the European Succession Regulation in Comparative Perspective

Patrick WAUTELET
Decisions on the European Succession Regulation in Belgium

Iina TORNBERG / Katja KARJALAINEN
Decisions on the European Succession Regulation in Finland

Patrick WAUTELET
Decisions on the European Succession Regulation in France

Inga KACEVSKA
Decisions on the European Succession Regulation in Latvia

Egle CAPLINSKIENE
Decisions on the European Succession Regulation in Lithuania

Paul CACHIA
Decisions on the European Succession Regulation in Malta

Patrick WAUTELET
Decisions on the European Succession Regulation in the Netherlands

Ioana OLARU
Decisions on the European Succession Regulation in Romania

Part V: COVID-19 Impact on International Family Law

Bogdana OSTROVSKA
International Issues of Surrogacy during the Pandemic and the War in Ukraine

Regiane PEREIRA
The Effects of the Pandemic on Cross-border Parental Relations and in Child Return Proceedings

Tiago Lindolpho CHAVES
The Impact of the Covid-19 Pandemic on International Child Abduction – An Analysis of the Grave Risk Exception and the Prompt Enforcement of the Return Order

Part VI: National Reports
Tamir BOLDBAATAR / Batzorig ENKHBOLD
Child Protection in Mongolia in the Context of the HCCH 1993 Adoption Convention

Mohammed RAKIB-UL-HASSAN
Beyond Judicial Patchwork – The Urgency of a Comprehensive Statute for Private International Law in Bangladesh

Part VII: Forum
N. Kansu OKYAY
Hybrid Dispute Resolution Clauses in International Law

Manuel José SEGOVIA GONZÁLEZ
Cross-border Insolvency Cooperation Agreements – Elements for a Contract Theory of Joint Jurisdiction

The Regional Hubs Bonn, Cologne and Düsseldorf of the German-American Lawyers’ Association (DAJV), together with the German-Israeli Lawyers’ Association (DIJV), the leading law firm Redeker Sellner Dahs and the University of Bonn, invite to a panel discussion at the Bonn offices of Redeker Sellner Dahs.

Germany has recently introduced a “precedent procedure” (“Leitentscheidungsverfahren”) in the German Code of Civil Procedure (“Zivilprozessordnung”, ZPO). The new legislation, only applicable if the outcome is relevant to a “multitude” (“Vielzahl”) of other proceedings, entered into force on 31 October 2024. On that very day, the German Federal Court of Justice (Bundesgerichtshof) immediately made use of this new tool and elevated to a “precedent procedure” a pending litigation against Facebook on damages for immaterial harm from “scraping” according to Article 82 European General Data Protection Regulation (“Scraping Complex”). This was to ensure that the Court be able to deliver an opinion on the relevant question of law even if the parties were to settle the case meanwhile. In the following, the parties did not settle, and the Court delivered its regular judgment soon afterwards, on 18 November 2024. Since then, the Court has not yet used this tool again, as it seems.

Germany is a civil law jurisdiction where, formally speaking (and leaving some exceptions aside), there are no binding precedents. Yet, there has been a long debate on “persuasive precedents”, i.e. the expectation and practice that lower courts follow the judgments of the Federal Court of Justice (and other highest courts), unless they put forward thorough legal reasoning for departing. A plethora of fundamental and practically relevant questions arises in this context: Do judgments of the courts create “law” or do they merely tell us what the law says that the legislator enacted? What, if any, are the constitutional constraints on judicial development of the law? Is the concept of “persuasive precedents” a satisfactory calibration between rendering justice in the individual case and stability of the legal system? What is the status of an opinion of the German Federal Court of Justice in the new precedent procedure in this context? Why does it only cover cases with relevance to a multitude of other proceedings? Is this “multitude” the same as the relevance of the point in law for a “multitude” of cases to grant access to first and final appeal (“fundamental relevance” [“grundsätzliche Bedeutung”])? What is the role of the three layer appeal system in its entirety in this regard? How does the independence of the judiciary come into play and how does this institutional guarantee relate to available disciplinary measures against “slow” and “ineffective” judges? To what extent do judges tend to discipline themselves by following precedents to promote themselves for higher-ranking posts?

All of these questions are highly relevant in other jurisdictions as well, but they are placed in fundamentally different contexts. Israel is a mixed jurisdiction with elements from common law and civil law. How do the Israeli Supreme Court and the lower courts deal with these issues? What is the law-making role of the Supreme Court in the context of constitutional tradition and practice? Is it advisable to combine the function of final appeal with judicial review of the executive and legislative branches of the state? Is there a particular politicization of final appeal proceedings as well, next to this trend in regard to judicial review proceedings? What effect should the role of precedents have on the procedure of appointing judges to the Supreme Court? Similar questions appear with a view to the United States, but there these questions are placed within a common law context. Having regard to recent decisions of the Supreme Court, how binding is precedent, and when can it be overturned? Also, what is the purpose of the “shadow docket”, and what does its apparently increased use signify in current Supreme Court practice? How important is precedent for the rule of law?

These and other questions will be addressed by a distinguished panel that represents the three jurisdictions and diverse perspectives:

Panelists:

Dr Thomas von Plehwe, Attorney admitted to the Bar of the German Federal Court of Justice (“Rechtsanwalt beim Bundesgerichtshof”), Karlsruhe, Germany.

Professor Barak Medina, The Landecker-Ferencz chair in the study of Protection of Minorities and Vulnerable Groups, Hebrew University Jerusalem, Israel.

Professor Russell A. Miller, J.B. Stombock Professor of Law, Washington & Lee School of Law, Lexington, USA.

Moderators:

RA Professor Dr Peter Andreas Brand, Redeker Sellner Dahs Rechtsanwälte, Berlin Offices.

Professor Dr Matthias Weller, Mag.rer.publ., MAE, Director of the Institute for German and International Civil Procedural Law, Regional Board Member for Bonn of the DAJV.

The venue is Willy-Brandt-Allee 11, 53113 Bonn. Participation is possible on site or via video conference.

We are looking forward to seeing you there!

Registration at sekretariat.weller@jura.uni-bonn.de

The 4th Asian Private International Law Academy (APILA) Conference was held on 13–14 December 2025 in Doshisha University (Kyoto, Japan). The two-day Conference explored a wide variety of questions and issues on private international law in Asia. It featured 21 papers delivered by leading and emerging scholars. Each paper was followed by a Q&A and discussion session among over 40 attendees. Attendees thoroughly enjoyed the rich intellectual exchanges within the close-knit (and expanding) community of APILA, and also the reception (with an impressive selection of food and drinks) on the first night of the Conference.

The keynote address this year was delivered by Dr Chukwuma Okoli, Assistant Professor in Commercial Conflict of Laws at the University of Birmingham. Dr Okoli spoke about his ongoing project, ‘Choice of Law for Employment Contracts in Africa: Imitation, Evolution and Revolution’. He argued that Africa plays an important role in shaping cross-border issues of employment contracts, and African perspectives should be considered in future harmonisation efforts on the topic. He also reflected critically on the development of African private international law, and the lessons from and for Asian private international law.

The 20 papers focused on a vast array of topics, encompassing theoretical and practical aspects of private international law in a wide range of Asian jurisdictions. A list of papers presented at the Conference (in alphabetical order of their titles) is as follows:

• Bankruptcy and Foreign Immovable Property: The Way Forward from Kireeva
• Beyond Performance Metrics: Explaining the Slow Growth of International Commercial Courts Compared to Arbitration
• Can Genuine Harmonisation in International Commercial Arbitration be Achieved without Islamic Law: Reconsidering Islamic Law’s Alleged Incommensurability with Civil and Common Law
• Cross-Border Insolvency and International Arbitration Agreements at Common Law
• Do Directors Owe a Duty to Ensure Corporate Compliance with (Foreign) Law?
• Global Standard Setting for the North? Rethinking the Regulatory Transformation of Private International Law from a Global South Perspective
• How to Unintentionally Win Two Japanese Moots: AI Tools and Multilingual Advocacy
• International Family Law: Quo Vadis?
• Islamic Law and Private International Law in Non-Muslim Majority Jurisdictions: Rethinking Private International Law through the Philippine and Australian Experience
• Islamic Law before Japanese Courts: Special Focus on Dissolution of Marriage
• Law Applicable to Tokenisation: Medium-Centred vs Right-Centred Approaches
• LGBTQ and Private International Law: Recognition of Same-Sex Marriage and its Effects in Japan
• Overstepping TRIPS
• Private International Law in Transnational Personal Data Litigation: Chinese Perspective
• Reassessing the Mode of Proof of Foreign Law
• Recognising Foreign Gender Identity in Hong Kong through Private International Law
• Rethinking Jurisdiction in the Era of Generative AI
• Standing and Characterisation in Corporate Social Responsibility (CSR) Disputes in Private International Law: Türkiye’s Position as a Bridge between Asia and Europe
• The Establishment of the Competence-Competence Principle in the Chinese Arbitration Act 2026
• The Law Applicable to Crypto Assets in Japanese Courts: Comparative and Methodological Considerations

The 5th APILA Conference will be held on 12–13 December 2026 in Seoul, South Korea. Interested speakers and attendees may wish to mark their diaries now. A call for papers will be circulated in due course.

Posted on behalf of Jason Mitchell, barrister at Maitland Chambers in London and at Group 621 in Johannesburg.

It’s rare for conflict of laws to come up in South African courts (with the notable exception of the Turkcell litigation from earlier this year; see the summary on this site at https://conflictoflaws.net/2025/south-africa-grapples-with-the-act-of-state-doctrine-and-choice-of-law-in-delict/).

A recent High Court judgement, Placement International Group Limited v Pretorius, is an opportunity missed. A Hong Kong company is in the business of recruiting South Africans and placing them with international companies. It employed two South Africans to do the recruitment. They worked for the company for several years and, so the company alleged, acquired confidential information about the company’s customers, methods, and the rest. The two employees resigned and started their own competing company. The employment contracts were governed by Hong Kong and had restraints of trade (the judgement does not say if there were dispute resolution/jurisdiction clauses). The company applied for an interdict against the two employees and the competing company in South Africa.

The company chose not to sue on the restraints of trade in the employment contracts (or on any contractual rights to confidentiality that are usually included in restraints). Instead, the company based its cause of action on delict (in general, the use of trade secrets and confidential information is a species of unlawful competition under South African law). The company seems to have made that choice because, so it thought, it had no cause of action under Hong Kong law.

The court dismissed the application, but its reasons are unclear. According to one interpretation of the judgement, the primary reason for dismissing the application was that the main harm, a specific job fair where the company conducts most of its recruitment, had already occurred, making an interdict no longer necessary. On another reading, the court seems to doubt that the company even made out the necessary prima facie right, partly because there was nothing confidential to protect but also, importantly, because of the effect of Hong Kong law governing the contracts.

Throughout the judgement, there is an unexpressed concern regarding forum shopping. The premise of this concern is that, at least according to the judgement, the restraints of trade are void under Hong Kong law (and that, presumably, there is no equivalent protection for confidential information under Hong Kong law). The parties did not present any evidence regarding Hong Kong law on this issue.

From that premise, the judge concluded that the company jettisoned a doomed (Hong Kong-governed) contractual claim for a viable (South African-governed) delictual claim.

It is regrettable that there was no engagement with characterisation and choice of law. The judge is alive (and concerned about) the link between the employment relationship and confidentiality duties. Under South African choice of law rules, the choice of law rule for delict is the lex loci delicti, but it may be displaced by the law of the country with a manifestly closer, significant relationship to the occurrence and the parties. The court should have at least gone through the conflicts process to determine whether Hong Kong law had a manifestly closer relationship, considering that it governed the employment relationship.

The judgment is available here: https://www.saflii.org/za/cases/ZAGPPHC/2025/1252.html

There is no better Christmas present than a comprehensive and up-to-date compilation of the previous year’s scholarship in private international law, and when that bibliography is prepared by Professor Symeon C. Symeonides (Alex L. Parks Distinguished Professor of Law, Dean Emeritus), it is truly something special.

As usual, and without fail for the past twenty years, Professor Symeonides has produced an exceptionally thorough and reliable survey of the field.

The 2025 compilation (Private International Law Bibliography 2025: U.S. and Foreign Sources in English) lists no fewer than 115 books and 397 journal articles devoted to private international law (or conflict of laws) and related areas.

The Absract reads as follows:

“This is the twentieth annual bibliography of private international law compiled by the undersigned as a service to fellow teachers and students of this subject. It includes 115 books and 397 journal articles that appeared in print in 2025.

The term “private international law” is used here in the broadest and arguably expanded sense. It encompasses not only the three divisions of the law of conflict of laws (adjudicatory jurisdiction, choice of law, and recognition of sister-state and foreign judgments), but also prescriptive jurisdiction, extraterritoriality, federal-state conflicts, as well as certain aspects of arbitration, the law of foreign relations, and international human rights.

AI Note: This compilation is the product of human labor-mine. I have visually verified all entries, although I have used electronic search engines to locate them. I have not used generative artificial intelligence (AI).

Access to the bibliography is available on Prof. Symeonides’ SSRN page here.

Readers may also wish to consult his insightful essay, Reflections from Fifty Years in the Conflicts Vineyard, in which he offers a concise yet profound and wide-ranging reflection on half a century of scholarship in the field, available here

Many thanks to Professor Symeonides for this invaluable contribution, which continues to be an essential resource for scholars and practitioners alike.

The third issue of the Journal of Private International Law for 2025 was just published. It contains the following articles:

Elena Rodríguez-Pineau, “Cross-border insolvency avoidance actions in the EU: a necessary reflection”

After 25 years, the European Union can boast of having harmonised EU cross-border insolvencies in a Regulation (recasted once). The EU is presently addressing substantive harmonisation of insolvency law (via Directives) within the Union with a focus on restructuring and stakeholders’ interests. Although such legislation should apply without prejudice to the EU Insolvency Regulation, this approach is somewhat difficult to articulate since that Regulation was drafted with a focus on liquidation and maximising creditors’ protection. This tension is particularly acute in relation to transaction avoidance actions as the Regulation sets a double avoidance requirement while the proposed Directive fosters a more pro-avoidance position. This paper suggests several options that the EU legislature may follow to revise the Regulation’s transaction avoidance rule. It is contended that such revision needs to bear in mind how the issue is being addressed outside the EU in order to consider the ad extra regulation of said actions.

Benjamin Hayward, “So many thoughts about Tesseract: a private international law perspective”

On 7 August 2024, the High Court of Australia handed down its decision in Tesseract International Pty Ltd v Pascale Construction Pty Ltd. In doing so, it held (contrary to existing practitioner consensus) that certain Australian proportionate liability laws apply in Australian domestic commercial arbitration. Existing analyses assess this case from an arbitration perspective. As this article shows, however, the case is really about private international law. This being so, this article critiques the High Court’s reasoning and also Tesseract’s existing commentaries from a private international law perspective. As arbitration is a dispute resolution process grounded in law, these critiques are offered in the service of helping Australian arbitration better secure its trade facilitation purposes.

Stefano Dominelli, “Torts in outer space: conflict of laws perspectives”

Human activities in outer space impose a reflection on the structural inadequacy of current connecting factors, such as the lex loci damni, which may not properly operate when all events are localised in areas (rather than a territory) not subject to the sovereignty of a State. By integrating space law principles and interests in conflict of law approaches, the aim of this work is to propose connecting factors which may apply in cases of satellite collisions or for torts in sub-orbital flights. Different constellations are created, each of which requires a specific assessment of the relevant interest which should mould specific solutions.

Thu Thuy Nguyen, “Governance of low-skilled labour migration: rethinking the potential of private international law for the promotion of decent work for migrant workers”

The proliferation of temporary labour migration programmes has enabled low-skilled workers from developing countries to seek employment in industrialised countries. However, due to inadequate regulatory frameworks at the national and international levels, these programmes fail to ensure decent work for the low-skilled migrant workers. By utilising the low-skilled labour migration between Vietnam and Japan as a case study, this article highlights the failure of the current regulatory framework in adequately governing the intermediaries and employers throughout the migration process. This article also presents the private international law challenges faced by migrant workers when initiating transnational civil litigation against abusive intermediaries and employers before Vietnamese or Japanese courts. To combat the exploitative practices of the migration industry and promote decent work, besides reforming ex-ante regulations, this article argues that the international community should reconsider the potential of private international law. This paper advocates that private international law could be better crafted to enable different stakeholders to engage in social dialogue about, and to seek the realisation of, the value of decent work. Based on this argument, this paper proposes solutions to remedy Vietnamese and Japanese private international law rules to facilitate the realisation of the value of decent work for low-skilled migrant workers under temporary migration programmes.

Aygun Mammadzada, “Beyond the model law: the case for a Commonwealth-wide adoption of the Hague Judgments Convention”

The 2019 Hague Judgments Convention (Judgments Convention) marks a pivotal development in private international law, offering a uniform framework for cross-border enforcement that enhances predictability and reduces legal fragmentation. By promoting legal certainty, it supports international trade and commercial relations and aligns with the broader push for greater judicial cooperation in the interconnected world. This article argues that it is in the clear interests of Commonwealth states to ratify the Convention. The Convention offers an avenue to strengthen the “Commonwealth advantage” by leveraging shared legal traditions and institutional ties to facilitate cooperation which the Commonwealth Model Law is unlikely to do on its own. Set against the backdrop of Brexit and the UK’s search for new legal alignments, the article further proposes that the UK’s ratification of the Convention can serve as a source of proactive inspiration for other Commonwealth states. As the key influencer and first Commonwealth state to ratify the Convention (apart from Malta and Cyprus, which acceded through their EU membership), the UK is uniquely positioned to promote wider adoption and reinforce both legal integration and commercial certainty. Such cooperative efforts can further consolidate the Commonwealth’s role in shaping the evolution of global private international law.

Bianca Scraback, “The international element requirement for consumer contract jurisdiction in the Brussels Ia Regulation”

Whether or not local jurisdiction in consumer contract cases is regulated in the EU by the Brussels Ia Regulation or domestic rules on jurisdiction hinges on the existence of a relevant international element. Even determining the relevance of international elements using a rules-based approach and despite two decisions of the CJEU, the paper argues that the requirement leads to unpredictability that is not warranted in light of the interests involved. It therefore proposes a legislative change limiting the determination of local jurisdiction to consumer contract cases where the parties are not both domiciled in the same Member State. If there are more than two parties involved, the paper proposes to include a rule modelled after Article 8(1) of the Brussels Ia Regulation.

Bálint Kovács, “Europeanisation of private international law: Balancing national traditions and EU rules”

The reviewed monograph provides a thorough examination of Hungarian private international law, set against the backdrop of EU private international law developments, and their application by the Hungarian judiciary. The book begins with a historical overview of Hungarian private international law, culminating in the 2017 recodification under the Act on Private International Law (APIL). It systematically explores sources of private international law, including national legislation, EU regulations, and international treaties. Key issues such as choice-of-law principles, jurisdiction, recognition and enforcement of judgments, and international civil procedure are dissected with comprehensive reference to Hungarian jurisprudence. The book also contains the English translation of the Hungarian APIL, as well as a complete list of bilateral and multilateral international agreements that include private international law provisions to which Hungary is a party. Its clarity, analytical depth, and practical insights make it a significant contribution, and an invaluable resource for both scholars and practitioners.

The latest issue of RabelsZ has just been released. The table of contents is available here. All content is Open Access: CC BY 4.0. More recent articles and book reviews are available Online First.

ESSAYS

Anne Röthel, Debatten über das Vergleichen. Wanderungen zwischen Rechtsvergleichung und Komparatistik [Debates about Comparison. Journeys between Comparative Law and Comparative Literature], pp 615–647, https://doi.org/10.1628/rabelsZ-2025-0060

Many academic fields look to comparative methods in pursuit of insight, with scholars debating how to proceed and what they hope to learn from the comparison. This article explores what comparative law stands to gain from interdisciplinary dialog with other fields of comparative inquiry. By way of example, it evaluates the potential gain from several journeys into the field of comparative literature. At first, these journeys back and forth between disciplines reveal a number of parallels: a striking resemblance between each field’s narrative of its own becoming; both fields’ exposure to fundamental criticisms; both fields ethicizing along similar trajectories; each one’s encounter with related dilemmas. At the same time, these journeys into comparative literature reveal implicit hierarchies and orientations in comparative law. But these cursory journeys through the history of comparative literature also counsel that comparative law would do well to avoid letting its own debates over the direction of the field veer into polarization and name-calling, into a kind of struggle that is mostly unwinnable and unproductive.

João Costa-Neto, João Guilherme Sarmento, From Roman Marriage to Unmarried Unions.
Defining the Requirements for de facto and Registered Partnerships, pp. 648–682, https://doi.org/10.1628/rabelsZ-2025-0059

This study examines the historical and comparative evolution of family law, tracing the transition from Roman marriage to contemporary partnerships. The article explores how Roman law conceptualised marriage as a social institution based on affectio maritalis, detailing its transformation through Christian doctrine into an indissoluble sacrament and its subsequent adaptation within modern legal systems. By analysing legal frameworks in Germany, Italy, France, England, and Brazil, the inquiry highlights the varying degrees of recognition granted to unmarried unions, from informal cohabitation to registered partnerships. The comparative analysis reveals the dynamic interplay between tradition, societal norms, and legal evolution, underscoring how distinct legal systems balance autonomy and protection in family law. This work contributes to the broader discourse on the harmonisation of family law and the impact of evolving societal values on legal institutions.

Tom Hick, Claiming Back Anticipatory Performance after Failed Negotiations.
A Comparative Analysis of Alternatives to Precontractual Liability, pp. 683–713, https://doi.org/10.1628/rabelsZ-2025-0049

As a matter of principle, breaking-off negotiations or refusing a contract offer are lawful actions. For based on freedom of contract, each individual is free to contract, free to choose one’s counterpart and the content of the contract, and equally free not to contract. Only exceptionally can a party be held liable for breaking-off negotiations based on wrongful conduct. Hence, it appears worthwhile to look for alternative approaches to recover fruitlessly incurred costs in the context of negotiations that failed independently of any wrongful conduct. Undue payment offers precisely this possibility. Therefore, the present contribution offers an exploratory look at the chances of success of an action for undue payment to recover costs incurred in the context of failed contract negotiations in Belgium, France, the Netherlands, and Germany. The paper finds that in those cases where fruitlessly incurred costs technically qualify as a payment in the respective national legal system, the prospects for the party seeking to recover these costs are surprisingly positive.

Derwis Dilek, Sebastian Omlor, Dominik Skauradszun, A New Private International Law for Digital Assets, pp. 714–742, https://doi.org/10.1628/rabelsZ-2025-0053

The increasing popularity of digital assets presents significant challenges for private international law, as fundamental conflict-of-laws rules concerning proprietary issues are often absent. This article outlines a possible approach to a technologically neutral and function-based conflict-of-laws framework. Taking existing instruments into account, it examines in particular the role of party autonomy through a choice-of-law rule, as well as alternative connecting factors based on structural, functional, or factual links between digital assets and legal systems. Building on this, the article proposes a conflict-of-laws framework for determining the law applicable to proprietary issues. This framework is designed to be applicable to various types of digital assets, including those based on decentralized networks. The proposed draft rule combines an express choice-of-law option with a multi-layered system of objective connecting factors and includes supplementary mechanisms for cases where the applicable law lacks substantive provisions.

Claudia Mayer, Keine verfahrensrechtliche Anerkennung von beurkundeten oder registrierten familienrechtlichen Rechtsgeschäften innerhalb der EU, [No Procedural Recognition of Acts Affecting Personal Status Based on Certificates Issued by Public Agencies within the EU], pp. 743–765, https://doi.org/10.1628/rabelsZ-2025-0058

In EU law, there is a discernible tendency on the part of the EU legislature to subject legal acts to procedural recognition – including as to their substance – based on certificates of recording or other kinds of documents issued by public agencies. It has therefore already been argued in the literature that a change of method has taken place whereby the conflict-of-laws as well as substantive review in the receiving state has been replaced by a recognition system. But this position must be rejected; generally, such documents issued by public agencies, from a procedural point of view, only have formal probative value. If the validity of the underlying legal act is ultimately uncertain from the point of view of the originating state and if no (procedural) position can be established based on the state’s participation, the substance of the act may and must be re-examined by the receiving state in accordance with the law designated by a conflict of laws examination there, even at the risk of creating a limping legal relationship. The ECJ’s case law on Art. 21 of the TFEU does not alter this principle. To further prevent limping legal relationships at the European level, what is needed instead is better standardization of the conflict of laws in EU secondary law.

BOOK REVIEWS

This issue also contains several reviews of literature in the fields of comparative private and private international law and on related topics (pp. 766–820).

On 19th December 2025, from 10-12 CET, the European Civil Justice Centre hosts a webinar on Data protection and collective actions from a US, European and cross-border perspective.

The fast-paced development of digital technologies, and the massive, cross-border, global dimension of the processing of personal data in the Internet, have necessitated the collective enforcement of data protection rights.

This seminar delves into developments in European collective actions, mass violations of data subjects’ rights, and the use of collective actions for the protection of supra-individual and homogeneous interests in Europe and the US, and aspects of cross-border litigation.

The focus of the seminar will the research conducted by Marina Federico (Naples University) for her book Protezione dei dati personali e tutela collettiva published in 2024.

Registration for free on Eventbrite here.

Program

10.00 Xandra Kramer (Erasmus University Rotterdam/European Civil Justice Centre) – Opening and welcome

10.05 Stefaan Voet (KU Leuven/ European Civil Justice Centre) – Introduction: Developments in European collective redress

10.25 Marina Federico (University of Naples “Parthenope”) – Data protection and collective actions. Itineraries of legal comparison in Europe and the United States

11.00 Eduardo Silva de Freitas (TMC Asser Institute/Erasmus University Rotterdam) – An Apple a day won’t keep litigation away: private international law’s new path for collective data protection claims

11.15 Discussion, moderated by Stefaan Voet

Henrike von Scheliha (Bucerius Law School) is currently looking to hire a Research Fellow (with the option to prepare a PhD thesis under her supervision) in German Family and/or Succession Law.

More information is available here.

The second annual conference of the Australasian Association of Private International Law will be held from Friday 17 to Saturday 18 April at Ashurst’s offices in Sydney, New South Wales, Australia, sponsored by Ashurst.

We are pleased to invite the submission of paper proposals for the conference on any aspect of private international law, broadly understood.  This includes issues of jurisdiction, choice of law, the recognition and enforcement of foreign judgments (including how they relate to cross-border issues within a federation), and all areas of private law that raise cross-border and transnational issues.

Paper proposals should be made on this form by Friday 30 January 2026. We also welcome panel proposals. Please email m.keyes@griffith.edu.au if you have a proposal for a panel. Proposed presenters on any panel will be required to submit individual paper proposals.

We welcome anyone interested in private international law, including from the judiciary, legal practice, government, and the academy, from any jurisdiction.  Attendees, including presenters, will be required to pay a registration fee. A conference dinner will be held on the evening of Friday 17 April, at an additional cost.

To keep up to date with AAPrIL events, please connect with us on LinkedIn.

You are invited to the next Migration Talk organized by the Jean Monnet Chair in Legal Aspects of Migration Management in the European Union and in Türkiye by Leyla Kayac?k (Human Rights Expert/ Council of Europe Former Special Representative of the Secretary General on Migration and Refugees) on “Border Control & Migration: Safeguarding Fundamental Rights in the Age of Artificial Intelligence”.

Venue: Online via Zoom
Date: 17 December 2025, Wednesday
Time: 12:30 – 13:20 (UTC +3)
The Zoom link shall be provided upon request: migration@bilkent.edu.tr

I. Introduction

Reciprocity is probably one of the most discussed requirements in the field of the recognition and enforcement of foreign judgments. While its legitimacy appears to be on the wane (see Béligh Elbalti, “Reciprocity and the Recognition and Enforcement of Foreign Judgments: A Lot of Bark but Not Much Bite,” 13 JPIL 1 (2017) 184), reciprocity can still strike hard – particularly when it is applied loosely and without sufficient consideration.

The case presented here, decided by the Egyptian Supreme Court (Appeal No. 11434 of 21 June 2025), provides a good illustration. Despite the Court’s well-established case law imposing certain restrictions on the use of the reciprocity requirement, this recent judgment shows that, when not applied with the necessary rigor, reciprocity can still produce significant effects that undermine the legitimate expectations of the parties.

II. Facts

The case concerned the enforcement of a Canadian divorce judgment rendered in Quebec, ordering the appellant (Y) to pay a specified sum of money with interest.

X, in whose favor the judgment was issued, sought to have the Canadian judgment enforced in Egypt. The Court of First Instance rejected the claim. X then appealed to the Court of Appeal, which overturned the first-instance judgment and ordered the enforcement of the Canadian decision.

Dissatisfied with this outcome, Y brought an appeal before the Supreme Court.

In support of his appeal, Y argued that the Court of Appeal had ordered the enforcement of the Canadian judgment without establishing the existence of any legislation in Canada permitting the enforcement of Egyptian judgments there, as required under Article 296.

III. The Ruling (Summary)

It is established in the case law of this Court that Article 296 of the Code of Civil Procedure makes clear that the rule is founded on the principle of reciprocity or mutual treatment. Accordingly, foreign judgments in Egypt must receive the same treatment that Egyptian judgments receive in the foreign country whose judgment is sought to be enforced. In this respect, the legislature limited the requirement to legislative reciprocity and did not require diplomatic reciprocity established by treaty or convention. The court must ascertain the existence of legislative reciprocity on its own initiative.

In the present case, the Court of Appeal ordered the enforcement of the Canadian decision on the basis that a foreign judgment may be relied upon before Egyptian courts so long as no Egyptian judgment between the same parties on the same matter has been issued and become enforceable, without determining whether any convention exists between Egypt and Canada concerning the enforcement of judgments that provides for reciprocity, as required under Article 296 of the Code of Civil Procedure.

This constitutes a violation of the law and requires that the judgment be quashed and the case remanded.

IV. Comments

The Court’s decision raises significant concerns.

First, the Supreme Court appears to contradict itself. After reiterating its longstanding position that “diplomatic reciprocity” – that is, reciprocity established through a treaty – is not required under Egyptian law, it nevertheless held that reciprocity with Canada was not established because the Court of Appeal did not determine whether any convention with Canada exists. This is not the first time the Court has adopted such reasoning. In a previous case decided in 2015, the Supreme Court relied on a similar approach when evaluating the enforcement of a Palestinian judgment (Appeal No. 16894 of 4 June 2015). Such reasoning is difficult to reconcile with the Court’s own affirmation that treaty-based reciprocity is irrelevant under Article 296.

Second, the Court’s ruling is inconsistent not only with the prevailing view in the literature (for an overview, see Karim El Chazli, “Recognition and Enforcement of Foreign Decisions in Egypt,” 15 YBPIL (2013/2014) 400–401), but also with the Court’s prior stance affirming reciprocity on the basis of “legislative reciprocity”. Under this approach, reciprocity exists if, according to the enforcement law of the State of origin, Egyptian judgments would be enforceable there. Indeed, in earlier cases, the Court conducted a comparative analysis of the enforcement requirements under the law of the State of origin and under Egyptian law, and concluded that reciprocity was satisfied when the two sets of requirements were broadly comparable (see, e.g., Appeal No. 1136 of 28 November 1990, admitting reciprocity with Yemen; Appeal No. 633 of 26 February 2011 and Appeal No. 3940 of 15 June 2020, both admitting reciprocity with Palestine). In addition, in some cases involving the recognition or enforcement of judgments rendered in a country with which Egypt has not concluded any international convention, the Supreme Court did not examine the issue of reciprocity as required under Article 296 of the Code of Civil Procedure, nor did it invoke it sua sponte as the Court has repeatedly affirmed. Instead, it directly examined the requirements for recognition or enforcement under the conditions laid down in Article 298 of the Code of Civil Procedure (see, e.g., Appeal No. 2014 of 20 March 2003 regarding the enforcement of a New Jersey judgment ordering the payment of damages resulting from breach of contract; Appeals No. 62 and 106 of 25 May 1993 regarding the recognition of a Californian divorce judgment. In both cases, however, recognition and enforcement were rejected, inter alia, on the ground of public policy).

Third, the Court’s stance in this case is likely to create more problems than it solves. Even setting aside the contradiction noted above, the Court gave no indication on how “legislative reciprocity” should be established when the foreign judgment originates from a federated province or a state within a federal system, each having its own autonomous legal regime (on the difficulty of establishing reciprocity emanating from federal states, notably the United States, see Béligh Elbalti, “La Réciprocité en matière de réception des décisions étrangères en droit international privé tunisien – observations critiques de la décision de la Cour d’appel de Tunis n°37565 du 31 janvier 2013” 256/257 Infos Juridiques (mars-2018) 20 (Part I), 258/259, Infos Juridiques (avril-2018) 18 (Part II)).

The situation of Canada is particularly striking. In Quebec, where a civil-law approach prevails in the field of private international law, the rules on the recognition and enforcement of foreign judgments are comprehensively codified (see Gérald Goldstein, “The Recognition and Enforcement of Foreign Decisions in Québec,” 15 YBPIL (2013/2014) 291) and differ substantially from those applicable in the common-law provinces (see Geneviève Saumier, “Recognition and Enforcement of Foreign Judgments in Canadian Common Law Provinces,” 15 YBPIL (2013/2014) 313). If the Court insists on applying the criterion of “legislative reciprocity,” how are Egyptian courts to assess reciprocity in relation to a province such as Quebec? Would it be sufficient that Egyptian judgments are enforceable in another Canadian province where enforcement is governed by common-law principles? Does it matter that, in the common-law provinces, recognition and enforcement are not codified and are largely based on case law? And if, as would be expected, “legislative reciprocity” had to be established by reference to Quebec law, would it be relevant that under Quebec law, reciprocity is not a requirement for the recognition and enforcement of foreign judgments at all? In this respect, Egyptian courts would be well advised to consider the generous approach followed in Tunisia, whereby the Supreme Court established a presumption in favor of reciprocity, placing the burden on the party challenging enforcement to prove its non-existence (for details, see Béligh Elbalti, “La réciprocité en matière d’exequatur?: Quoi de nouveau?? Observations sous l’arrêt de la Cour de cassation n° 6608 du 13 mars 2014”published in Arab Law Quarterly (2025) as an online-first publication).

Finally, this case, along with several others concerning the enforcement of foreign judgments, illustrates the difficulty of enforcing such judgments in Egypt in the absence of an applicable treaty (for recent examples, see Appeal No. 25178 of 17 November 2024, which rejected the enforcement of an Irish judgment on the ground of public policy, and Appeal No. 3493 of 4 December 2024, which rejected the enforcement of an Austrian judgment because the various conditions laid down in Article 298 were not satisfied. By contrast, where a bilateral convention exists, enforcement is somewhat generally easier (see, e.g., Appeal No. 200 of 14 May 2005, which allowed the enforcement of a French custody judgment pursuant to the bilateral convention between the two countries; but contra, Appeal No. 719 of 8 October 2013, which rejected the enforcement of a similar French judgment).

It must be admitted, however, that the conclusion of such a convention does not necessarily guarantee smoother enforcement (see, for instance, my previous comments on the enforcement of judgments rendered in Saudi Arabia and Kuwait, available on this Blog here and here).

The issue of “foreign law” and its application, long considered essential to the functioning of private international law (PIL), continues to trigger interesting discussions and debates.

In this context, Professor Dr. Carlos Esplugues (University of Valencia) has recently published a special course entitled New Dimensions in the Application of Foreign Law by Courts (and Arbitrators) and Non-Judicial Authorities in the Collected Courses of the Hague Academy of International Law – Recueil des cours, Volume 449, which offers new perspectives on this long-discussed topic.

In this course, Prof. Esplugues discusses the traditional state-centred and binary (“domestic vs. foreign”) perspective and views it as outdated. He argues that the application of foreign law cannot be treated as a single, unified reality and that understanding the topic requires a broader, “propedeutic” approach that takes into account the functioning of PIL as a system with internal contradictions, pressures, and limitations.

The blurb reads as follows:

Private international law is a field of law that is particularly permeable to its environment. This openness to the outside world has historically manifested itself in the question of the application of foreign law, the answers to which, far from being strictly legal, have also reflected political, economic and geostrategic reasons. Starting from this premise, the course will, firstly, assess the validity of the equation “foreign law = foreign State private law”, based on the triple idea of the reformulation of the role of the State at the national and international levels, the acceptance – even encouragement – by the State of the presence of private providers of legal services, and the reappearance of normative realities outside the State, which enjoy varying degrees of acceptance and sympathy. Second, it analyses the usual incoherence between theoretical positions on the nature of applicable law and their practice in most places in the world. This is done, thirdly, overcoming the traditional US-Eurocentric approach to the subject by opening up the study to the responses of a large number of jurisdictions outside the US and Europe, where the future of the discipline will be decided.

The table of contents, in its main lines, is as follows:

Introduction. A polymorphic issue requiring a global and asymmetric approach

Chapter I. Beyond the legal discourse: Geopolitics, Private International Law and the admission of foreign law
1. Those early days when PIL did not exist
2. The emergence of the first PIL responses
3. A step further: The development of the principle of comity (and vested rights)
4. The paths diverge: Continental Europe, Anglo-Saxon countries and Ibero-America
5. Diving into the fog: Admitting, as a rule or exception, the possible application of foreign law

Chapter II. The playing field for foreign law: The pier and the quicksand
1. First: The changing terrain for foreign law
2. Second: The end of the State’s judge as the sole actor in the process of applying foreign law
3. Third: The evolving and relative meaning of “application” of foreign “law”
4. A slippery issue and the fluctuating reality of PIL: Not such a beautiful friendship

Chapter III. The nightmare in practice: How is foreign law applied?
1. The application of foreign law by national authorities
2. The system in practice: The link between the treatment of foreign law before national authorities and its legal, factual or hybrid consideration
3. Foreign law before State courts
4. The application of foreign law by State non-judicial authorities
5. A fully particular world: The application of the law governing the substance of the dispute by the arbitrators

Epilogue. The never-ending story . . . until the consolidation of AI?

Bibliography

A symposium on “Judicial Independence and Liberal Democracy Under Threat: The Challenge of Implementing the ELI Mt Scopus Standards on Judicial Independence” will take place from 10 to 12 December 2025 at the University of Nicosia. The event is organised by the Procedural Law Unit in cooperation with the International Association of Judicial Independence and World Peace (JIWP) and will be held at the UNESCO Amphitheatre.

For conflict-of-laws scholars, the theme is of direct relevance. The operation of mutual trust, the circulation of judgments and the effectiveness of cross-border cooperation depend upon structurally independent courts capable of delivering fair and impartial justice. Recent developments in several jurisdictions have renewed the discussion on whether systemic deficiencies can undermine recognition and enforcement mechanisms. The symposium aims to examine these questions against the background of the ELI Mt Scopus Standards, which provide a comprehensive framework for assessing judicial independence in both institutional and functional terms.

The Opening Session, chaired by Assistant Professor Nicolas Kyriakides, will include contributions from representatives of the justice ministries of Greece and Cyprus, members of the Cyprus judiciary and parliament, the Cyprus Bar Association, the European Commission and the European Law Institute. Professor Shimon Shetreet, President of JIWP and Co-Reporter of the Mt Scopus Standards, will also address the audience.

The programme subsequently turns to comparative perspectives, with interventions by Marieta Safta, Graham Zellick, Mikhail Antonov, Alexander Trunk, Daniela Piana, Matthias E. Storme and Achilleas Demetriades. A further session on the contemporary role of courts will feature Valentina Pavlicic, Dragana Kolaric, Amnon Reichman, Gralf-Peter Calliess, Christos Clerides, Takis Tridimas and Giuseppe Franco Ferrari.

The afternoon sessions will consider judicial appointments and structural guarantees, with contributions from Fryderyk Zoll, Sophie Turenne, Caroline Expert-Foulquier, Serhii Kravtsov and Stephanie Laulhé Shaelou, followed by a panel on judicial ethics and accountability with Natasa Plavsic, Philippe Jougleux, George Kontis and Andrea Danuser. The final session, addressing judicial independence in democratic governance, will include Ruti Teitel, Martin Sabelli, Haim Sandberg and Hiram Chodosh, with concluding comments by Maimon Schwarzschild and Elina Asimakopoulou.

For those interested in the institutional foundations of private international law, the symposium offers a timely opportunity to revisit the structural assumptions that underpin cross-border judicial cooperation.

The programme is available here: https://www.unic.ac.cy/event/procedural-law-unit-5th-annual-symposium/

To follow the event online, you may watch the YouTube livestream here: https://www.youtube.com/watch?v=gKQ8sRIRQZs

By Marketa Trimble, Samuel S. Lionel Professor of Intellectual Property Law, Co-Director of the IP Law Concentration, William S. Boyd School of Law, University of Nevada, Las Vegas

It is neither new nor surprising that international treaties affect the design and application of conflict-of-laws rules; not only international conventions on private international law but also other international treaties shape conflicts rules, with human rights treaties being the primary example. But a recent decision concerning the interpretation of the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”) could have profound and arguably unprecedented effects on the conflict rules that are applied in intellectual property (“IP”) cases, such as cross-border cases concerning copyright infringement, trademark ownership, and patent licenses.

In July 2025, an arbitration panel decided in a WTO dispute between the European Union and China that the Chinese anti-suit injunction policy that led Chinese courts to issue anti-suit injunctions in disputes involving standard-essential patents violated the TRIPS Agreement (China—Enforcement of Intellectual Property Rights, WTO, Award of Arbitrators, WT/DS611/ARB25, 21 July 2025). The decision, which concerned the Chinese version of anti-suit injunctions, which are referred to as “behavior preservation orders,” was rendered on appeal from a panel report from April 2025. In the absence of a functioning WTO Appellate Body, the appellate decision was rendered under the alternative Multi-Party Interim Appeal Arbitration Arrangement that was concluded pursuant to Article 25 of the WTO dispute settlement understanding.

The EU complaint to the WTO in the case was certainly not the first, or the only, attack on anti-suit injunctions that national courts have issued in patent cases in order to stop parties from litigating in parallel in foreign jurisdictions. Opponents of anti-suit injunctions have been successful, for example, in the Paris Court of Appeal and in the Munich Local Division of the Unified Patent Court; these courts found that in the particular cases, U.S. court-issued anti-suit injunctions violated parties’ rights under the European Convention of Human Rights and the Charter of Fundamental Rights of the European Union (IPCom GmbH & Co. Kg v. Lenovo (United States) Inc, No 14/2020, Paris Court of Appeal, 3 March 2020; Huawei v. Netgear, UPC, Munich Local Division, Order of 11 December 2024, File No. ACT_65376-2024 UPC_CFI_791-2024). But while the effects of those decisions have been limited and focused on anti-suit injunctions, the arbitral panel decision in the WTO case could have much wider implications.

The arbitral panel in the WTO case found that TRIPS Agreement Article 1.1, according to which WTO “[m]embers shall give effect to the provisions of [the TRIPS] Agreement,” creates a corollary obligation for WTO members “to do so without frustrating the functioning of the systems of protection and enforcement of IP rights implemented by other Members in their respective territories.” Because the anti-suit injunctions policy at issue affected the patent holders’ ability to enforce their rights that WTO member countries provided for in compliance with the TRIPS Agreement, the panel held that the policy violated the TRIPS Agreement. The panel acknowledged that “the TRIPS Agreement does not address issues of private international law,” but concluded that “the TRIPS Agreement … requires that Members not frustrate the effective protection of trade-related IP rights in the territories of other Members.” It explained that “[t]he provisions of the TRIPS Agreement would be rendered inoperative if Members were allowed to frustrate the implementation by other Members of their obligations under the TRIPS Agreement.”

Although the arbitral panel decision concerns anti-suit injunctions in patent cases, its reasoning raises the question whether the panel’s interpretation of the TRIPS Agreement could affect the application of other conflict-of-laws rules and affect the rules in any cases involving IP rights covered by the Agreement. Anti-suit injunctions are not the only means through which conflicts rules can impact the ability of a foreign country to protect the IP rights that the foreign country provides. Justiciability of foreign IP rights violations allows courts to adjudicate IP rights infringements arising under foreign countries’ laws, which foreign countries could perceive as depriving their own courts of the opportunity to vindicate the countries’ IP law violations and preventing the countries from fulfilling their obligation to “give effect to the provisions of [the TRIPS] Agreement.” Choice-of-law rules that direct courts to apply the law of the forum to remedies in cases of foreign IP rights infringements could also be viewed as diminishing or frustrating foreign countries’ protection of their IP rights, and any denials of the recognition and enforcement of foreign judgments concerning foreign IP rights, which might, for instance, be because of their repugnancy with the public policy of the recognizing court’s forum, clearly frustrate foreign countries’ enforcement and protection of their IP rights.

A pessimistic reading of the decision could lead to the conclusion that the arbitral panel’s interpretation forecloses the application of many principles and rules of conflict of laws that assist or could assist in the cross-border litigation of IP cases. In the past two decades, teams of conflicts & IP law scholars in the United States, Europe, and Asia have proposed sets of conflicts principles and rules that would overcome strictly territorial approaches to IP rights enforcement and promote greater flexibility in cross-border IP litigation, such as wider justiciability of foreign IP rights violations, greater numbers of courts with broader jurisdiction over IP disputes, concentrations of proceedings of related causes of action concerning IP rights in different countries, and the application of a single country’s law for ubiquitous (such as online) IP rights infringements. Among the several proposals, the projects by the American Law Institute, the European Max Planck Group, and the International Law Association have been the most detailed. Much of this work could now seem to be to no avail in light of the arbitral panel’s interpretation of the TRIPS Agreement.

An optimistic reading of the arbitral panel decision could offer support for the current conflicts principles and rules, and at least for some of the principles and rules proposed by the projects. Conflicts rules should support collaboration among courts in their enforcement of each other’s national laws, including IP laws, and thus contribute to countries meeting their obligations under the TRIPS Agreement. For example, justiciability of foreign IP rights violations can frustrate the ability of foreign courts to adjudicate violations in their jurisdictions, but in some cases, the justiciability rule can pave the way for the only available avenue for effective enforcement of the rights, such as when a rights holder can afford to litigate only once, and a concentration of proceedings, facilitated by the rules of justiciability, of parallel violations of IP rights under multiple countries’ laws provides the only realistic possibility for a rights holder to enforce his rights. Certainly, any rules that aim to maximize the recognizability and enforceability of foreign judgments in IP cases should be consistent with a requirement that a foreign country’s ability to “give effect to the provisions of [the TRIPS] Agreement” not be frustrated.

Not all conflicts rules, and not the rules in all circumstances, will live up to the corollary obligation that the arbitral panel identified in Article 1.1 of the TRIPS Agreement. Detailed analyses should study the compliance of different conflicts rules with the obligation, and also contemplate the role that the rules might play in achieving the overall goals of the TRIPS Agreement when a foreign country’s IP laws and/or judgments do not comply with the Agreement. Rules such as the public policy exception and internationally mandatory rules might pose interesting questions in this regard.

The durability of the arbitral panel’s interpretation is unclear; because it is a product of the Multi-Party Interim Appeal Arbitration Arrangement, the arbitral panel’s decision is binding only on the parties and is not precedential for all WTO members, and future decisions within the WTO dispute settlement could produce other interpretations. For now, the interpretation by the arbitral panel suggests that courts should be looking closely at the TRIPS Agreement when addressing conflict-of-laws issues in cross-border IP cases.

Registration is open for the book launch celebrating the publication of The Hague Convention on Choice of Court Agreements: A Commentary, to be held in hybrid format in The Hague on 11 December 2025 from 1.30 p.m. to 4.45 p.m. (CET). The book launch will coincide with the tenth anniversary of the entry into force of the 2005 Choice of Court Convention.

The book launch will consist of two session. In the first session, the authors and discussants will explore selected chapters of the book. Brooke Marshall (University of Oxford) and Stefanie Francq (Catholic University of Louvain) will discuss the manifest injustice and public policy exception in Article 6 of the Convention; Louise Ellen Teitz (Roger Williams University) and Fausto Pocar (University of Milan) will discuss declarations under Articles 21 and 22 and accommodating multiple legal systems; and Gilles Cuniberti (University of Luxembourg, EAPIL) and Adrian Briggs KC (University of Oxford) will discuss the law applicable to the issue of consent to choice of court agreements. The second session of the event will discuss the practical operation of the Convention and the practical application of the text, with the participation of Delphia Lim (Ministry of Law of Singapore), Colin Seouw (Colin Seouw Chambers LLC), and Anselmo Reyes (Singapore International Commercial Court). Dr Christophe Bernasconi (HCCH) will provide opening remarks, and Melissa Ford (HCCH) will moderate the discussions.

For more information, and to register, please visit: https://www.hcch.net/en/instruments/conventions/specialised-sections/choice-of-court/hcch-book-launch

This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH).

The fourth issue of the Lloyd’s Maritime and Commercial Law Quarterly for 2025 has recently been published.  It contains the following articles, cases notes and book review.

Michael Howard, “The True History of the Origin of the Mareva Injunction or Freezing Order”

Fifty years ago, in 1975, a revolutionary innovation occurred in English procedural law, the introduction of what is officially named the freezing injunction, formerly and to some extent even now known as the Mareva injunction. It was the consequence of two decisions of the Commercial Court, the Karageorgis and Mareva cases. The thesis of this article, lightly camouflaged, is that these cases and this change were brought about by a combination of four factors which are present in most such developments of the common law: the personal, the institutional, the technical legal and the accidental. It is an attempt to present all of them and to show that the first and particularly the last were disproportionately large contributors.

Masood Ahmed, “State Immunity and the New York Convention”

Adrian Briggs, “Book Review of Hong Kong Private International Law” (by Wilson Lui and Anselmo Reyes)

My views

I  read the interesting—but in my view unconvincing—critical review by Emeritus Professor Adrian Briggs of “Private International Law in Hong Kong” (by Wilson Lui and Anselmo Reyes). My reading of the review is that Briggs laments the authors’ limited engagement with English sources, suggesting that because Hong Kong’s private international law is not as fully developed as Singapore’s, English texts and cases should operate as gap-fillers.

I take a different view. I am pleased to see Asian private international law scholars asserting a more autonomous and context-sensitive approach to developing their conflict-of-laws rules. That intellectual independence is healthy for the discipline, and it is precisely the direction I believe African private international law should pursue.